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NY N025974




May 8, 2008

CLA-2-39:OT:RR:NC:N2:222

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5600

Mr. Joseph R. Hoffacker
Barthco Trade Consultants
The Navy Yard
5101 S. Broad Street
Philadelphia, PA 19112-1404

RE: The tariff classification of a plastic planter with lighting, artificial soil and seeds from China

Dear Mr. Hoffacker:

In your letter dated April 4, 2008, on behalf of Urban Outfitters, Inc., you requested a tariff classification ruling.

The submitted sample is identified as a USB Greenhouse, style# 51. This item consists of an oblong shaped planter made of plastic material. Located at the top of the planter is a light unit that is referenced as a “growth light” and consists of six light emitting diodes (LEDs). The light unit is located on an arm that can be manually extended upward above the planter or manually lowered back down to the planter. The planter stands 8.9 inches high when the top arm is in the lowered position. It stands 13.75 inches high when the top arm is fully extended. There is a four foot cable that extends from the back of the planter and is fitted with a USB connector.

The planter has an oblong shaped clear plastic protective window on the front that can be removed to gain access to the inside of this item. Inside the planter, on the bottom, is a removable plastic tray, referenced as an “inner tray”. There are seven small drain holes located on the bottom surface of the inner tray. Within the planter, the inner tray sits on a plastic ledge that has a circular shaped aperture, approximately 2.25 inches in diameter. Located under this aperture is another plastic tray, referenced as a “drip tray”. The plant that will be cultivated in this planter will be located on the inner tray. When the plant is watered, the excess water will drip through the drain holes and then through the circular shaped aperture, ultimately landing in the drip tray below. The drip tray can be removed from the back of the planter so that the excess water can be discarded.

The plastic planter will be imported with a separate plastic packet in the packaging box that contains Crude Vermiculite, which is intended to be used as artificial soil. There is another small plastic packet, within the packet of Vermiculite, which contains Marigold seeds. The packaging box has a CD and a printed paper instruction pamphlet. The CD can be used by the consumer to install a software program on a personal computer. The software program contains a calendar on which the consumer can input watering and plant growth information. The program also has a growth chart and an alarm feature that reminds the consumer of various tasks that need to be performed, such as watering, soil maintenance, fertilizing and the removal of excess water. As you requested, the sample will be returned to you.

You have stated in a subsequent email that there is no direct interaction between the software program and the planter. The only interaction between the planter and a personal computer is based on the fact that the computer’s USB port will be used as a power source for the light unit that is located on the top of the planter. The light unit is not controlled by the software program. The light unit can only be turned on when the USB connector is plugged into the USB port of a computer. When the computer is powered on, the light unit is powered on. When the computer is powered off, the light unit is powered off.

You have further stated that the software program does not directly monitor the growth of the seeds within the planter. The reminder alarm of the software program is not based on the actual growth of the seeds in the planter. It is entirely based on the information that the consumer will input into the program and operates completely independently of the actual growth of the seeds in the planter.

This item is considered to be “goods put up in sets for retail sale” within the meaning of General Rule of Interpretation (GRI) 3. The consumer does not have to use the seeds or artificial soil that is included with the planter. In fact, on the packaging box, the following words are printed: “Starter pack – includes seeds of Marigold, artificial soil (But please feel free to use any seeds of your choice to maximize your USB greenhouse experience)”. Likewise, the software program does not have to be used. It does not directly interact with the planter and merely provides supporting information to the consumer for the cultivation of the plant within the planter. Likewise, the light unit does not have to be used. In fact, the light unit can only be used when plugged into a computer and the computer is powered on. Therefore, it is the opinion of this office that the plastic planter provides this item with the essential character within the meaning of GRI 3(b).

The applicable subheading for style# 51 will be 3924.90.5600, Harmonized Tariff Schedule of the United States (HTSUS), which provides forother household articlesof plastics: other: other. The rate of duty will be 3.4 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

Seeds may be subject to regulations or restrictions administered by the U.S. Department of Agriculture, Animal and Plant Health Division (APHIS). You may contact this agency regarding possible applicable regulations at the following location:

U.S. Department of Agriculture
APHIS
Plant Protection and Quarantine Permit Unit 4700 River Road, Unit 136
Riverdale, MD 20737-1236
Telephone number: 877-770-5990

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Gary Kalus at 646-733-3055.

Sincerely,

Robert B. Swierupski
Director,

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